The Legal Effect Of Marital Property Contract And The Alteration Of Real Right

The central concept of this article is the marital property contract.This article focuses on the nature of the marital property contract,the choice of the legislative mode of the marital property system and legal effect of the marital property contract.This article is divided into the following three parts:The first part focuses on the fundamental issues of the marital property contract,which is the basis of this article.The concept of “marital property contract” has its broad sense and narrow sense.The property contract between the two parties that have established or will soon establish a husband-and-wife relationship can be defined as the marital property contract in the broad sense.The concept of “the marital property contract” is used in the narrow sense in this article,the contract which applies to the marital property system is included.The marital property contract is extensive,which is reflected in the property type,scope,ownership status and so on.The marital property contract has the dual attribute of identity and property,and it is attached to the valid marriage.The validity of the contract must be based on the validity of the marriage.The Article 19 of the Marriage Law is the legal basis.However,the provision is ambiguous.The nature of the binding force and the legal effect of the contract is unintelligible,which leads to different choice of the legal effect in the judicial practice.Therefore,in order to clarify relevant issues,further study is needed.The second part aims to explore the nature and the theoretical basis of the marital property contract.In addition,the relationship between the marital property contract and the gift is important as well.The marital property contract should not be characterized as a pure property contract,because of the identity characteristics and the value orientation of the marriage and family law.The theoretical basis of the marital property contract is the marital property system,which can be found in Article19 of the Marriage Law.Judging from the two current legislative modes at present,the legislative mode determined in Article 19 is original contractual mode,because it has recognized the agreement on specific property.According to this,the relationship of the marital property contract and the gift between the couple should be distinguished by the true meaning between the couple.The Article 6 of the Judicial Interpretation of Marriage Law(?)should be applied with caution.Only after the husband and wife have clearly expressed the meaning of “gift” can the relevant provisions of the Contract Law be applied.Otherwise,it should be presumed that the marital property contract applies to the marital property system,and arbitrary cancellation right is nonexistent.The third part focuses on the legal effect of marital property contract.According to the agreement of the husband and wife,the alteration of the property right is the desired pursuit.When the marital property contract is effective,the alteration of property right occurs.From the viewpoint of the principle of public summons and public faith,the registration is not the source of the alternation of real right.The principle of public summons and public faith focuses on the secure maintenance of transactions.For the couple,the marital property contract is not signed as a transaction and it doesn't refer to the consideration of market transaction security.However,if the third party has a property transaction with the husband or wife,the maintenance of transaction security should be taken into consideration,and the marriage and family law no longer has the priority.Due to system coordination and value balance considerations,the consensualism is the best choice.For the counterpart of the transaction and the creditor of husband or wife,the rule that the effect of the change of the property right cannot against the bona fide third party should beuniformly established.The counterpart of the transaction may seek protection and acquire the ownership of the property based on the system of bona fide acquisition.The creditor of the individual debt may exercise the cancellation right of creditor.If the alteration of the real right is not registered,the creditor knows the marital property contract or not becomes the criterion for judging the party's subjective goodwill.